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January 23, 2001


The opinion of the court was delivered by: Hurley, District Judge.


Defendants Salvatore Avellino ("S.Avellino"), Michael Avellino ("M.Avellino") and Michael Malena ("Malena") "seek an order compelling the government to fulfill its constitutional obligations under Brady v. Maryland." (Mem. Law Supp. Pretrial Mots. at 1.)

The same defendants, plus defendant Michael Tomenelli ("Tomenelli"), have moved, pursuant to Federal Rule of Criminal Procedure 7(f), for a bill of particulars: "[P]articularization [is sought] of the following charges: carting industry extortion conspiracy (Racketeering Act One, Count Three), conspiracy to murder Ernest DeMatteo (Racketeering Act Seventeen), interstate travel in aid of racketeering (Racketeering Act Eighteen), and conspiracy to defraud the IRS (Count Sixteen)." (Mem. Law Supp. Defs.' Mot. Bill of Particulars at 1.)

Defendant Kevin Kallmeyer ("Kallmeyer") seeks an order "[c]ompelling the government to (a) comply with its Brady obligations, including as to any testimony admitted under Fed.R.Evid. 806; (b) disclose any `other crimes' evidence it intends to introduce; and (c) provide a summary of the testimony of any expert it intends to call at trial pursuant to Fed. R.Evid. 702." (Kallmeyer Not. Mot. at 1.)


1. Court's May 14, 1999 Order

2. Motion by S. Avellino, M. Avellino and Malena Asking the Court to Reconsider the May 14, 1999 Order

S. Avellino, M. Avellino and Malena (collectively, "movants") correctly note that, even if the May 14, 1999 Order is deemed to be the law of the case, that doctrine does not preclude the subject from being revisited. Such reconsideration is, as movants argue, "particularly appropriate here because the Moving Defendants were not parties at the time that [the May 14, 1999 Order] was issued and therefore did not have an opportunity to be heard with respect to the appropriate timing of Giglio disclosure." (Mem. Law Supp. Pretrial Mots. at 11.) For that reason, reconsideration is granted.

3. Timing of Brady, Giglio and Section 3500 Disclosure

Movants maintain that the Court's establishment of differing discovery schedules for Giglio and Brady is logically flawed because Giglio material is Brady material. While it is well settled that impeachment evidence "having the potential to alter the jury's assessment of the credibility of a significant prosecution witness" falls within the Brady rule, United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998), it does not follow that all Brady material must be disclosed simultaneously.

Neither statute nor case law has delineated a fixed time frame for disclosure. Yet as explained by Judge Glasser in United States v. Shvarts, 90 F. Supp.2d 219, 225 (E.D.N.Y. 2000) "[t]he holding in Brady, based as it was under the demands of due process, was aimed at insuring that the trial of a defendant will be a fair one." To accomplish that goal, it is imperative that the materials be furnished with sufficient lead time to permit their effective utilization by the defense. And that determination depends in large measure on the nature of the material involved. Which is to say some Brady material requires more investigation and analysis than other items. "Thus, while the requirements of due process underlie both the Brady doctrine and its offspring, including Giglio, the very nature of Giglio material dictates a different timetable for its effective use." United States v. Frank, 11 F. Supp.2d 322, 325 (S.D.N.Y. 1998); see also United States v. Jacques Dessange, Inc., No. 99 CR 1182, 2000 WL 280050, at *7-8 (S.D.N.Y. Mar. 14, 2000) ("Giglio material is customarily produced in this District with Section 3500 material in recognition of the fact that this type of Brady material does not ordinarily require any independent investigation in order to use it effectively at trial.").

In sum, Brady and its progeny instruct that a failure by the prosecution to provide the defense with exculpatory or material impeachment information, or the belated production of such information which prevents its effective utilization, is violative of due process. Here, we are concerned solely with the timing of the disclosure rather than the withholding of the information. As to that subject, not all Brady material is the same and, accordingly, differing disclosure schedules — contrary to the position urged by movants — are permissible.

With respect to § 3500 material, the statute provides that a statement or report of a government witness need not be made available to the defense until the conclusion of the witness's direct testimony. 18 U.S.C. § 3500. A court has no power to compel the disclosure of such material prior to that time. United States v. Percevault, 490 F.2d 126, 131-32 (2d Cir. 1974). However the government often agrees, as it has done in the present case, to release such information earlier given, inter alia, that adherence to the statutory disclosure provision may result in interruptions in the presentation of its case-in-chief. See 18 U.S.C. § 3500(c) ("Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.").

In those instances in which a statement or report of a government witness contains exculpatory or material impeachment information, the question arises whether the statutory mandate must yield to the due process concerns of Brady. Although the answer to that question may seem to border on the self-evident at first blush, there is a division of authority. See Shvarts 90 F. Supp.2d at 227-29 (discussing cases).

Complicating the analysis is the fact that subdivision (c) of § 3500, previously quoted, provides a mechanism presumably adopted to satisfy constitutional requirements by providing time for the defense to evaluate Brady material contained in a government witness's statement or report. If Brady pertained solely to a defendant's trial rights, such a mechanism seemingly would pass constitutional muster. But such is not the case. As explained by the Second Circuit in Avellino:

To the extent that the prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation to disclose that evidence to the defendant. Information coming within the scope of this principle ("Brady matter") includes not only evidence that is exculpatory, i.e., going to the heart of the defendant's guilt or innocence, but also evidence that is useful for impeachment, i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness. See, e.g., [Giglio]. . . .
The government's obligation to make such disclosures is pertinent not only to an accused's preparation for trial but also to his determination of whether or not to plead guilty. The defendant is entitled to make that decision with full awareness of favorable material evidence known to the government.

136 F.3d at 255 (citations omitted) (emphasis added); see also United States v. Lino, No. 00-CR-632, 2001 WL 8356, at *14 (S.D.N.Y. Jan. 2, 2001) ("[T]his Court concludes that impeachment material is Brady material and must ...

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